Hasil untuk "Private international law. Conflict of laws"

Gabriel Pereira

Este artículo examina el proceso judicial por crímenes de lesa humanidad en el caso del Ingenio La Fronterita, en Tucumán, Argentina, como una vía para repensar la justicia transicional desde una perspectiva desde abajo. A partir de una investigación cualitativa y mediante el marco analítico de la Palanca de Arquímedes, se analiza cómo interactúan cuatro dimensiones —movilización desde abajo, innovación institucional, poder de veto y contexto político— para explicar avances, bloqueos y reactivaciones del caso. Se enfatiza que los procesos de justicia no se despliegan de forma uniforme y que los territorios provinciales no son meros espacios de implementación, sino escenarios donde se disputan sentidos de justicia, verdad y responsabilidad empresarial. El artículo muestra cómo actores subnacionales, aun en contextos adversos, impulsan estrategias complejas para desafiar la impunidad. Propone un enfoque territorializado y multidimensional que contribuye a comprender las posibilidades y límites de la justicia transicional en contextos periféricos y a enriquecer marcos analíticos existentes.

Max Steuer

Attitudinal and strategic models prevail in studying the capacities of centralized constitutional courts (CCs) to withstand autocratization. Yet, these models rarely scrutinize CCs’ interpretations of political concepts. This article aims to remedy the gap via an institutionalist approach to the significance of conceptualizations of democracy by CCs. It invokes a maximalist reading of democracy to accommodate a wide range of conceptions, is diachronic, squarable with comparative case studies and sensitive to political regime types, using an ideal-typical distinction between semi-authoritarian, illiberal and democratic regimes. The article illustrates the potential of this approach by presenting a dataset on CCs in Hungary and Slovakia. Both regimes have formally powerful CCs with a non-democratic experience. Yet, they seem to have taken a different trajectory since 2010. The article suggests that analysing these two CCs’ conceptions of democracy can advance our understanding of their role in preventing (or failing to prevent) autocratization in Hungary and Slovakia.

Terry Moraa, George Gor

The principle of the best interests of the child is a universally recognised norm of the Convention on the Rights of the Child (CRC). While there is no consensus on the definition of this principle, various soft law documents, academic literature, and judgments demonstrate its centrality in both private and public spheres. The Children Act of 2022 provides a detailed articulation of this principle, facilitating its application in the Kenyan context. This paper examines the Kenyan and international legal and normative framework on the detention of children in the child justice system. It explores the nexus between the detention of children in conflict with the law and the principle of the best interests of the child. The authors contend that the detention of children in conflict with the law should be guided by the principle of the best interests of the child, as enshrined in Article 53(2) of the Constitution of Kenya, 2010 and international law. It reaffirms the position, adopted by courts of law, that there should be a limit to the institutionalisation of children in Kenya. The authors further advocate diversionary measures to judicial proceedings, such as family group conferencing, as suitable options.

Uxue Zugaza

This article explores the idea of “embeddedness” (Bussu et al. 2022) based on a larger research project aimed to study the institutionalisation of intersectionality in Spain (1983–2021). On the basis of 18 in-depth interviews with municipal equality technicians and key informants for their trajectory in intersectionality and diversity in different fields of production of public policy, the article introduces two specific contributions to the research programme initiated by Sonia Bussu and her team (2022). On the one hand, we problematise some of the limits of the institutionalisation of intersectionality in the framework of a bureaucratic public action. In doing so, we suggest that bureaucracy offers an explanatory framework for analysing the low capacity for embedding policies related to democratic deepening. Secondly, the text expands the “practical” dimension of embeddedness to include informal working strategies such as time and leadership styles.

Roys Qaribilla, Ahmad Khoirul Umam

Before discussing the meaning of international law, it is important to know that law is divided into two large groups, private law and public law. However, the terms these two large groups are better known as international law and international private law. The difference between the two is in the objects they regulate. International law is the law that regulates relations between countries and other legal subjects. International law can be defined as the law that regulates international scale entities. Initially, the definition of international law was only defined as law that regulates behavior and relations between countries. However, in its development, the meaning of international law has expanded to include the relationship between states and international organizations, the relationship between international organizations and other organizations, the relationship between states and individuals in special contexts, and so on. There are six subjects of international law, namely : states, international organizations, the international red cross, the vatican holy see, rebels and individuals. International Law includes a set of rules and principles established through international treaties, the practices of states, as well as legal decisions and interpretations by international institutions. Its aim is to regulate the behavior of states in maintaining peace, managing conflict, promoting cooperation, and protecting human rights. International Law covers various aspects, including the law of war (also known as international humanitarian law), refugee law, maritime law, environmental law, international trade law, international investment law, human rights law, diplomatic law.

Riccardo Vecellio Segate

Abstract The United States is the most influential actor in the Israeli–Palestinian conflict; its intelligence agencies cooperate with Israel on most “counterterrorism” dossiers impacting Palestinians’ life, with a significant number thereof pertaining to Internet policing in Gaza and the West Bank. Meanwhile, Israel controls some of the key Internet service providers (ISPs) that serve Palestinians, and it is thus endowed with the capability to compel those ISPs to filter information so as to perform as American propaganda reinforcers. Moreover, the United States may unaccountably assert jurisdiction over data from and to Palestine because American cables are where most of the Internet transits through, exercising surveillance without judicial oversight. Verified instances of censorship directed by government-tied U.S. corporations, especially during confrontational seasons, are indeed numerous. Palestinian authorities themselves contribute to creating information clusters and identity bubbles, with infrastructural deficiencies as well as executive and court orders undermining freedom of expression online under arbitrary “public morals” or “security” concerns. The combined effect of technical advantage and regulatory capture supports the convergence of interests between Palestinian and Israeli authorities in restricting Palestinians’ digital rights, and assists the United States in reiterating its “security” hegemony in the region. This warrants a debunking of the limits of the law in constraining private actors and readjusting states’ jurisdiction over Internet infrastructure and data packets transiting through it.

Bojan Bugarič

Constitutional engineering is a complicated practice, and much less is known about the relationship between constitutionalism and democracy than many are willing to admit. A cursory look at the political science literature reveals that constitutional design has only a moderate to small impact on the stability of a democratic regime. This is not to suggest that constitutionalism is altogether irrelevant, but the findings of different social scientists suggest that we should be humbler and more realistic about the role of constitutionalism and institutions in fostering peace, democracy, and development. Anna Saunders's article, “Constitution-Making as a Technique of International Law: Reconsidering the Post-War Inheritance,” provides an important contribution to such a realistic reassessment of constitutionalism. Nevertheless, her critique of constitutional assistance needs to be developed further, examining the limitations of constitutional law in itself as a promoter of peace and democracy, rather than just the fact that material and economic questions are often neglected in international constitution-making. A key question is not so much whether and how to create a better constitutional design that would integrate economic and structural issues more openly, but, more fundamentally, whether traditional constitutional approaches are in fact appropriate for the promotion of peace, democracy, and development in post-conflict settings. In this essay, I argue for a democratic and experimentalist form of constitutionalism, which is often at odds with the core ideas of traditional constitutionalism, namely, rigidity and entrenchment.

Rizky Amalia, Muhammad Amirul Alfan, Maghfirah Aliefia et al.

The Indonesian government carries out goods/services procurement activities in the framework of the welfare of its people. From time to time the procurement of goods/services has developed and, in the current digital era, it has begun to switch to electronic-based procurement. To answer the challenges of these developments, as well as to prevent fraud or violations of the law, a solid system is needed that can accommodate all of this. The blockchain concept can be an alternative to answer this issue because the blockchain system has advantages in terms of security and transparency. The research method used in this article is legal research with a statute and conceptual approach. The purpose of this article is to become a reference regarding the probability of using the blockchain system in the law of procurement of goods and services in Indonesia. The findings of this study are that no country has yet implemented a blockchain system for the procurement of goods/services. Blockchain technology has been implemented by the private sector, namely by Walmart, Nestle, and Unilever who use blockchain technology as the basis of their supply chain management which, with this system, can increase effectiveness and efficiency as well as afford a good level of security. Thus the blockchain system for procuring goods/services in Indonesia can be a method that can be applied to increase efficiency and aspects of transparency to reduce misuse in the procurement of goods/services.

M. O. Medvedieva

The article analyzes the notion and types of jurisdiction in the doctrine of international law as well as in treaty law and international court practice. The author considers main restrictions of jurisdiction of a state within national boundaries and in international territories as well as the issue of conflict of jurisdictions from the perspective of Public and Private International Law. The article concludes that modern legal doctrine and treaty law witness that jurisdiction has become an established institute of international law which has its own principles and sources; it embraces all branches of international law and, thus, may be characterized a system-wide institute of international law.

Iftinaity Shaumi Rahma, Eliza July Hasiana, Sian Lie Cantika et al.

Currently, internet development grows rapidly which facilitates and eases various economic activities, especially e-commerce transactions, on a global scale. In 1996, the UNCITRAL regulated the e-commerce transactions, including e-contracts. The e-contract is one of the most relevant matters in e-commerce transactions, especially it is of importance for the consumers to avoid any unwanted situations. However, several problems arise for consumers in conducting e-commerce transactions, such as the asymmetrical bargaining power of the parties involved. In this sense, there is an urgency for the legal protections for consumers. The objective of this article is to understand the connection between consumers’ legal protection and e-contracts validity in e-commerce transactions. The research method used is the legal descriptive analysis through statutory and conceptual approach. This study analyzes the legal relationship between the legislations related to the e-contracts within e-commerce transaction in Indonesia, which are the Indonesian Civil Code, Law Number 8 of 1999 concerning Consumer Protection, and Law Number 19 of 2008 on Information and Electronic Transactions. Through a systematic appraisal, it argues that the current legal framework does not fully guarantee legal certainty for consumers in e-commerce transactions, such as on the obligations of producers and distributors to customers in the e-commerce transactions.

Irfan Ali, Rubina Ali

The emergence of China as a great power is indubitably one of the greatest perplexities in the international arena since the cold war era. Similarly, it poses challenges to the strategic position of the US. The economic and technological height of China has now become a big question mark for the US hegemony. The US has adopted some essential policies and actions like the B3W initiative and Strategic Competition Act of 2021, which label China a strategic competitor in multiple areas, including economics, technology, and military security. Such actions and policies by the US generate growing strategic competition between Beijing and Washington. However, the Chinese political elite has reservations that the US wants to curb the expansion of Chinese influence. This paper, therefore, analyses how strategic competition between China and the US increases with the rise of China, particularly after China’s BRI, and how China poses a challenge or an opportunity for the US. This paper employs the Power-transition theory as an analytical framework to investigate the power transition debated among policymakers in the US and China.   Bibliography Entry Ali, Irfan, and Rubina Ali. 2021. "Rise of China: Growing Strategic Competition between the US and China." Margalla Papers 25 (1): 103-114.

Sam Adelman

Business as usual is widely acknowledged as the main driver of ecological collapse and climate breakdown, but less attention is paid to the role of law as usual as an impediment to climate justice. This article analyses how domestic and international environmental law facilitate injustices against living entities and nature. It calls for a paradigm shift in legal theory, practice and teaching to reflect the scale and urgency of the unfolding ecological catastrophe. Section 2 outlines the links between climatic harms and climate injustices. This is followed by discussions of unsustainable law and economic development in sections 3 and 4. Section 5 examines the potential contribution of new materialist legal theory in bringing about a legal paradigm shift that reflects the jurisgenerative role of nature in promoting climate justice.<br /><br /> El statu quo empresarial est&aacute; ampliamente considerado como el actor principal del colapso ecol&oacute;gico y el desastre clim&aacute;tico, pero se presta menos atenci&oacute;n al papel del statu quo jur&iacute;dico como obst&aacute;culo a la justicia clim&aacute;tica. Este art&iacute;culo analiza c&oacute;mo el derecho ambiental nacional e internacional facilita que se produzcan injusticias contra los seres vivos y la naturaleza. Pide un cambio de paradigma en la teor&iacute;a, la pr&aacute;ctica y la ense&ntilde;anza del derecho, para reflejar la escala y la urgencia de la cat&aacute;strofe ecol&oacute;gica que se est&aacute; desarrollando. La secci&oacute;n 2 dibuja las relaciones entre el da&ntilde;o clim&aacute;tico y la injusticia clim&aacute;tica. A esto le sigue una argumentaci&oacute;n sobre el desarrollo jur&iacute;dico y econ&oacute;mico insostenible, en las secciones 3 y 4. La secci&oacute;n 5 examina la contribuci&oacute;n potencial de la nueva teor&iacute;a jur&iacute;dica materialista en el sentido de provocar un cambio de paradigma jur&iacute;dico que refleje el rol jurisgenerativo de la naturaleza para promover la justicia clim&aacute;tica.<br /><br /> <strong>Available from:</strong> <a href="https://doi.org/10.35295/osls.iisl/0000-0000-0000-1177" target="_blank">https://doi.org/10.35295/osls.iisl/0000-0000-0000-1177</a>

P. Morris

in academia, which has taken a revolutionary step towards deconstructing the Eurocentric narratives in the discipline, this book, written by Hassan S. Khalilieh, is a promising work that unfolds Islamic thought on the law of the sea. Given the vast complexity of Islamic jurisprudence, the task undertaken by Khalilieh is absolutely praiseworthy. The cardinal argument that stems from his work is based on comparing and contrasting the Islamic legal principles on the law of the sea with Western concepts. In performing this task, the author has aptly used Qur’anic references to the sea and water that later provided the ground rules for Islamic legal principles of the law of the sea: “A Qur’anic verse (:) states: ‘We have made from water every living thing’” (p. ). In addition to illustrating references from the Qur’an as the prime source, Khalilieh traces the historical development of the Islamic jurisprudential approach to the freedom of navigation during the time of Prophet Muhammad. In fact, the author provides a comprehensive account of the development of the Islamic jurisprudential approach to the law of the sea from the time of Prophet Muhammad to the post-prophetic era, when Muslim jurists created different narratives based on geopolitical divisions. The historical analysis presented by Khalilieh shows the extent to which Islamic rulers developed their penchant for systematically organizing maritime affairs as a result of the expansion of Islamic empires. Another important aspect of the book is that it provides a fair answer to the common misconceptions prevailing in academia regarding some of the concepts of Islamic law and its practices. For instance, the author refutes some of the academic myths justifying the connection between piracy and the Islamic concept of Jihad (p. ). In the concluding chapter, Khalilieh claims that Grotius’s doctrine of freedom of the seas was rooted in a non-European setting, and he further elaborates on the manner Muslims adopted in preserving the universality of the sea as a divine gift to all humankind (p. ). The third chapter of the book mainly discusses the Islamic legal implications for piracy in the high seas. The issue of piracy appears to be one of the most crucially important issues that have been discussed in modern international law of the sea. However, the usage of Islamic theological references without providing a coherent elucidation has perhaps made Khalilieh’s work a slightly tiring task for a general reader of the international law of the sea. In our opinion, the book would have been much clearer if the author had reduced the number of Qur’anic references relating to Islamic jurisprudential practices—but we cannot reproach the author as his discipline lies in Islamic studies. All in all, the book provides a novel reading on the international law of the sea and right to innocent passages from an Islamic jurisprudential perspective and this contribution fills a vacuum in existing international law of the sea scholarship.

Matthias B. Lehmann

Regulatory rules are omnipresent today. Increasingly, they also influence private rights and obligations, from employment contracts to competition law and data protection. Private international law traditionally treats them with a certain reserve because they do not fit its paradigms of “neutral” and “interchangeable” rules of law. This article argues that it is time to change this attitude. Regulatory rules often protect global public goods, such as the environment, or shield against global bads, such as pandemics. Others serve aims shared between different countries, like the fight against money laundering and tax evasion. For these reasons, administrative authorities around the world cooperate in the enforcement of regulation. Private international law should open up its methodology to this new reality. After exploring the traditional ways in which regulation has been dealt with, this article makes concrete proposals for changes. Besides overcoming the “public law taboo”, these include the more liberal application of foreign public law and foreign overriding mandatory rules, the development of multilateral conflicts rules for areas permeated by regulation, the recognition of foreign administrative decisions, and the development of a global public policy.

D. Lukianov, I. Shumilo, M. Lukan

Inheritance is one of the legal means that ensure the effective implementation of copyright, therefore the protection of the interests of testators and their successors in cross-border matters is an important task of international private law. Modern national systems of inheritance and copyright operate independently. Due to the influence of economic, political and socio-cultural factors, the unification of substantive law of these industries is unlikely, so the conflict of law method of regulation remains dominant in this area. The paper highlights the main problems of conflict of law regulation of cross-border copyright inheritance and offers approaches to overcoming them. The authors address such issues as forms of manifestation of a foreign element in the relations of copyright inheritance; problems of distinguishing between intellectual and inheritance statutes; features of the application of the point of contact lex loci protectionis; the principle of territoriality, etc. Based on the analysis, it is concluded that the subordination of key issues of copyright inheritance to the conflict rules of the intellectual statute extends the principle of territoriality to these relations and necessitates multinational protection of these relations. The paper supports the opinion of scholars who criticise the concept of territoriality in matters of copyright protection, proving its ineffectiveness. Ultimately, the authors suggest that the tools of private international law allow for flexible approaches and do not equate copyright, which is more related to personal status, and industrial property rights, aimed at achieving commercial interests. It is proposed to achieve greater flexibility by detailing the scope of the conflict of law rules and establishing a system of conflict bindings, which will allow to choose the law that is more related to the circumstances of the case.

Mohammad Taghi Rafiei , Abolfazl Shahin

Resolving the conflict of laws applicable to cultural heritage disputes is an important challenge in private international law. The cause of this challenge is, on the one hand, the preponderant role of cultural property in constituting of cultural and historical identity of nations, and the enormous profit of illicit trade of cultural properties on the other hand which leads to numerous disputes. In most of these claims, the lex rei sitae rule has been applied that normally leads to the issuance of unfair judgments. The negative effects of these decisions result in the question of determining the proper law governing cultural property claims. The theory of applying the lex originis rule to cultural property disputes is the theory which is accepted in this article. In order to prove this theory, this article is divided into two parts using a descriptive and analytical method: at first, the lex rei situs rule will be studied and the application of this rule to cultural property claims will be examined by a critical perspective and then the alternative courses of action will be analyzed.

M. Mazhorina

The central institute of private international law — conflict of law — in the modern globalization and information context is evolving, which is largely due to the paradigm shifts in law, laid down and developed based on international commercial arbitration. The widely interpreted concept of «rules of law» actualizes a completely new view of conflicting arrays of rules: the law of the state and the system of non-state regulators. The medieval lex mercatoria, revived in the XX century, is modernized by cyberspace, acquires a new sound in the form of e-merchant or lex informatica, especially in the context of the parallel development of smart contracts and new decentralized forms of dispute resolution, one of which is blockchain arbitration. In particular, the issues of conflict of law, traditional for cross-border transactions, arise in relation to smart contracts, which, using blockchain technology, are inherently linked to several jurisdictions. It is important to reflect on the questions of applicability of traditional conflict-of-laws bindings to the regulation of relevant relations, including through forecasting the practice of choosing the law of a state, the substantive rules of which are adapted to the use of new technologies, or recourse to the rules of non-state regulation.

Jorge Fernández

The study of Mexican law and practice makes it apparent that the regulation of several consular and diplomatic functions within the framework of the protection of nationals and dual or multiple nationals abroad, inheritance upon death (successions mortis causa), family law and international judicial assistance, needs to be updated in accordance with the development of private international law, information technologies and ciberspace. Ongoing preparatory work in drafting National Rules on Civil and Family Law Procedure presents an opportunity and framework to that effect, opening space for inter alia: the legal recognition of electronic apostilles (e-APPs); for regulating consular intervention on behalf of minors and persons lacking full capacity; for reasserting the mandatory six-week deadline for the child’s return in international child abduction procedures; as well as for enacting domestic provisions on the transmission and execution of requests of international judicial assistance by electronic means; as well as for digital research into foreign law. Mexico’s leadership would likewise be enhanced through the promotion of multilateral protocols on the subject and the negotiation of international judicial technologi-cal interconnection agreements; through the updating of official guidelines on consular protection for dual or multiple nationals; through the statutory definition of Mexican authorities entrusted with executing foreign requests regarding Mexican law; and in particular through the launching of a Presidential Program on International Human Mobility and high level programs connected to The law of the international movement of persons.

D. Ciss

The law, in a general way, has the role of regulating life in society. From this same Law, several rights with branches facilitate their explanation and use in our social life to establish order. This being life in society could be seen as a kind of contract to the extent that it would be difficult for the individual to live without maintaining relationships with others. So, from the moment that there is this exchange between individuals there is what we could call contract. As we know, the contract is defined in law as an agreement by which one or more persons agree to one or more other persons to give, do or not to do something. It should also be specified that there are several kinds of contracts, but the one that will be the main focus of our development is the international contract. An international contract is understood to mean this contract, which, unlike the internal contract, presents an element of extraneity, in other words an international character. For example, a contract between two individuals of different nationality. The contract thus concluded, the contracting parties may indeed encounter difficulties that may arise at any time, most often due to non-compliance with the terms of the contract. These problems or disputes are often very difficult to resolve because the parties are from different origins, residing in different countries, or bound by commitments made in a country other than their country of residence, hence the existence of different laws. and the birth of what is called a conflict of laws. This being so, by conflict of laws is meant to be one of the main problems with private international law (the branch of law which deals with the settlement of disputes of private rights having at least an extraneous character). Thus, the question arises as to which law would be applicable in the event of a conflict of laws in the matter of contract, that is, how to choose or determine the applicable law in the course of a dispute with a foreign element? Thus, once the French judge is seized of the dispute, it will be necessary to find the law applicable to the questions of law asked. Assuming that the French judge can apply a foreign law, and that the various foreign laws with links to the litigation have a theoretical vocation to apply, were developed what are called conflict of laws rules which is an abstract rule, indirect (it does not solve the substantive question asked, but only to determine the law competent to resolve this substantive legal issue), and neutral (the substantive solution is not taken into account in the determination of the applicable law). In order to give answers to our questioning, we will focus on how to choose the law applicable to conflict of laws in matters of contract and this, in the light of French law, the Rome Convention of 19 June 1980 and the Rome 1 Regulation on the law applicable to international contractual obligations.

J. D. Bruyne, Cedric Vanleenhove

This article focusses on some implications related to the commercialisation of self-driving or autonomous cars. Such vehicles are no longer a mere futuristic idea. They could soon be available on the market. Society in general and the applicable rules in particular will undergo a transformation following the introduction of autonomous vehicles. Despite the many benefits, self-driving cars also pose several challenges. These do not only relate to technical aspects but also to the influence of the autonomisation of traffic on infrastructure and employment in different sectors. More importantly, several legal challenges will need to be addressed as well before society will be able to fully enjoy the benefits of self-driving cars. The question as to who should be held liable for damage caused by self-driving car has already been addressed in academia. Less attention has been devoted to the relationship between autonomous vehicles and the existing private international law rules in the European Union. Although the application of the current jurisdictional and conflict of laws rules does not present problems, the membership of some EU Member States of the 1971 Hague Traffic Accidents Convention and/or the 1973 Hague Products Liability Convention impedes the harmonisation of conflict of laws rules in non-contractual matters as envisaged by the Rome II Regulation. In cases concerning liability arising from traffic accidents and in product liability cases, different Member States courts sometimes apply a different national law. This reduces foreseeability and legal certainty.